AARP Foundation Litigation attorneys filed AARP’s brief in Gross v. FBL Financial urging the Court to extend the reasoning of Costa to age discrimination claims.
AARP’s brief pointed out that the ADEA contains language identical to that of Title VII, which the Court relied on in Costa to hold that direct evidence is not required. The brief also argued that while Congress has imposed heightened proof standards in other statutes, the ADEA, like Title VII, does not mention direct evidence or contain any other heightened proof requirement. Finally, the brief stated that there are no compelling legal or policy reasons for establishing a two-tiered approach to discrimination cases that holds Title VII claims to one standard, but raises the evidentiary bar substantially higher for non-Title VII claims, including ADEA claims. The brief concluded by pointing out that if the Court were to do so, it would be tantamount to proclaiming that age discrimination, disability discrimination, and the other forms of discrimination prohibited by the non-Title VII federal legislation are less onerous, less invidious and, therefore, less deserving of societal condemnation than those grounds enumerated in Title VII.
By a razor-thin 5-4 margin, the Supreme Court ruled against Gross, but did so in a way that went well beyond the question presented. Instead of addressing the direct evidence issue, the Court ruled that because the CRA amended Title VII, but not the ADEA, to permit the burden of proof to shift to the defendant when there was evidence that discrimination was a motivating factor in the employment decision being challenged by the plaintiff, Congress must have intended that the much higher burden of proving that discrimination actually caused the adverse employment decision applies to ADEA claims. To add insult to injury, the Court went on to state that the ADEA does not authorize mixed-motives claims.
Justice Stevens, in a scathing dissent joined by Justices Ginsburg, Souter, and Breyer, said that the majority opinion in Gross abandons what had been “long recognized” by the Court, “that [its] interpretations of Title VII’s language apply ‘with equal force in the context of age discrimination.’” Justice Stevens concluded by stating that “Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress’ intent.”
Justice Breyer wrote a separate dissenting opinion that was joined by Justices Souter and Ginsburg in which he emphasized the evidentiary problems presented by the Court’s decision. “All that a plaintiff can know for certain … is that a forbidden motive did play a role in the employer’s decision,” and given “that the employee likely knows less than does the employer about what the employer was thinking,” circumstantial evidence should suffice to shift the burden to employers.
What’s at Stake
The patent unfairness of the Gross decision should have compelled Congress to swiftly enact legislation to overturn it. Indeed, in a footnote the majority opinion practically invites Congress to do so: “[W]hether [a] forbidden motive … played a role in the employer’s decision … is a decision for Congress to make.” Nevertheless, although curative legislation has twice been introduced, Congress has so far failed to take action and Gross continues to mock the right granted to all older workers by the ADEA to be free from age discrimination.
Gross v. FBL Financial was decided by the U.S. Supreme Court.